The Bombay High Court has delivered a split verdict on petitions seeking to strike down Rules 3(i)(II)(A) & (C) of the IT Amendment Rules, 2023. The impugned provisions allow the Central Government to establish a Fact Checking Unit (FCU) to identify any 'fake, false or misleading' information about its business on social media platforms.

Justice GS Patel struck down the amendment, while observing that, "I believe it is unthinkable that any one entity — be it the government or anyone else — can unilaterally ‘identified’, (meaning picked out and decided) to be fake, false or misleading. That surely cannot be the sole preserve of the government. The argument that the government is ‘best placed’ to know the ‘truth’ about its affairs is equally true of every citizen and every entity. Paradoxically, complaints of a grievous nature (pornography, child abuse, intellectual property violations) can only be taken down only after following a grievance redressal procedure; yet anything relating to the business of the Central Government can be ‘identified’ as fake, false or misleading by the FCU — and cannot be hosted."

On the other hand, Justice Neela Gokhale upheld the validity of the amendment, and observed that, "The impugned Rule meets the test of proportionality. Right of citizens to participate in the representative and participative democracy of the county is meaningless unless they have access to authentic information and are not misled by misinformation, information which is patently untrue, fake, false, or misleading, knowingly communicated with malicious intent. The measures adopted by the Government are consistent with the object of the law and the impact of the encroachment on fundamental right is not disproportionate to the benefit which is likely to ensue."

Senior Advocate Navroz Seervai, Senior Advocate Darius Khambata and Senior Advocate Arvind Datar, along with others, appeared for the petitioners. SG Tushar Mehta and ASG Devang Vyas appeared for the respondents.

In this case, various petitioners, including stand-up comedian Kunal Kamra, the Editors Guild, the Association of Indian Magazines, and the News Broadcasters and Digital Association, challenged the constitutional validity of certain amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules in 2023.

Kunal Kamra argued that the amendments, specifically Rules 3(i)(II)(A) and (C), which introduced fact-checking provisions, violated his freedom of speech and right to carry out his profession as a comedian. The media organizations contended that the rules subjected their work to government-controlled fact-checking, impacting their freedom of the press.

The petitioners sought a declaration of the rules as unconstitutional and a writ of mandamus against their implementation. Legal arguments were presented on various constitutional grounds, including Article 14, Article 19(1)(a), Article 19(1)(g), and the violation of natural justice. The submissions covered concerns of discrimination, arbitrariness, and the legitimacy of the rule-making power for the amendments.

Justice Patel's Judgment:

Considering the effect of the impugned amendment, it was observed that the government's Fact Checking Unit becomes the sole authority to decide what piece of user-content relating to the undefined and unknowable ‘business of the government’ is or is not fake, false or misleading. With that background, it was observed that the amendment appears to be vague and overbroad. In that context, it was said that, "The lack of definition of these words: business of the government; fake; false; and misleading makes the amendment both vague and overbroad. Anything might be the business of government. Anything could be said to be ‘fake’. ‘Misleading’ is entirely subjective. And as to ‘truth’ and ‘falsity’, throughout recorded human history there are few, if any, absolute truths. Perceptions, perspectives, possibilities, probabilities — all will to a greater or lesser extent colour what one chooses to believe or hold or chooses not to believe or hold. The assumption that there are absolute truths to even the business of government, even if we knew what that included and what it did not, is unsubstantiated."

It was held that the impugned amendment is ultra vires Article 19(1)(a), Article 19(2), Article 19(1)(g), Article 19(6), Article 14, violates the principles of natural justice and is also ultra vires Section 79 of the IT Act. In that context, it was said that, "every attempt to whittle down a fundamental right must be resisted root and branch. The slightest possibility of a fundamental right abridgment cannot be allowed to stand. Every attempt to limit any fundamental right must be demonstrably confined to its permissible limits within Articles 19(2) to 19(6). Everything else is illegitimate. For between the ‘abyss of unrestrained power’ and the ‘heaven of freedom’ lie these three Articles of our Constitution: Articles 14, 19 and 21."

Additionally, concern was expressed over the lack of contemporaneous guidelines.

Subsequently, the petitions were allowed.

Justice Gokhale's Judgment:

It was observed that the impugned Rule is not violative of Article 14, and it was said that, "The charter of the FCU, the extent of its authority, the manner of its functioning in ascertaining fake, false or misleading information, etc, is yet unknown. In case of any actual bias exhibited by the FCU, recourse to the courts of law is always open to the aggrieved person. Thus, a challenge to a potential abuse by the FCU on the basis of an apprehension is not maintainable and to that extent it is pre-mature."

It was also stressed that the qualification to the offensive information is knowledge and intent, and that political satire, political parody, political criticism, opinions, views etc does not form part of the offensive information. It was further said that, "Content comprising of a critical opinion or a satire or parody, howsoever critical of the Government or its business, if it ‘exists’ and is not fake or known to be false or misleading, does not fall within the mischief sought to be corrected by the impugned Rule."

It was noted that the words ‘Fake’, ‘False’, or ‘Misleading’ are to be understood in the ordinary sense of their meaning.

Subsequently, the petitions were dismissed.

The matter is to be placed before a third Judge.


Petitioners: Senior Advocates Navroz Seervai, Darius Khambata, Arvind Datar, Counsels Shadan Farasat, Gautam Bhatia

Respondents: SG Tushar Mehta, ASG Devang Vyas

Cause Title: Kunal Kamra vs Union of India & Connected Matters

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